No. 90-475
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
GERALD RICHARD DZIVI,
Petitioner and Appellant,
and
BEVERLY J. DZIVI,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dirk Larsen; Larsen & Neill; Great Falls, Montana
For Respondent:
C.W. Leaphart, Jr.; The Leaphart Law Firm; Helena,
Montana
Submitted on Briefs: December 13, 1990
• Decided: February 5, 1991
Filed:
n
'Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Petitioner, Gerald Richard Dzivi (Mr. ~zivi), initiated
dissolution proceedings against respondent, Beverly J. Dzivi (Mrs.
Dzivi) , in District Court for the Eighth Judicial District, Cascade
County. The District Court entered its Findings of Fact,
Conclusions of Law and Decree dated June lst, 1990. Mr. Dzivi
appeals. We affirm.
The issues are:
1. Did the District Court abuse its discretion when it ordered
Mr. Dzivi to pay Mrs. Dzivi the sum of $75,000.00 plus interest in
lieu of a specific property division?
2. Did the District Court abuse its discretion when it ordered
Mr. Dzivi to pay Mrs. Dzivi $1000.00 per month for maintenance?
3. Did the District Court abuse its discretion when it ordered
Mr. Dzivi to pay Mrs. Dzivi $5000.00 for her attorney's fees?
The parties were married for thirty-seven years. Mr. Dzivi
is a practicing attorney and actively involved in various business
ventures in Montana. Mrs. Dzivi works part time for a travel
agency. The children of the marriage are all adults and the only
issues before the District Court are division of the marital estate
and maintenance. Both Mr. Dzivi's and Mrs. Dzivits incomes have
been recently reduced due to health problems of both parties.
Did the ~istrictCourt abuse its discretion when it ordered
Mr. Dzivi to pay Mrs. Dzivi the sum of $75,000.00 plus interest in
lieu of a specific property division?
The District Court found that the net worth of the marital
estate was $149,000.00. It also found that liquidating the estate
would not be in the best interests of the parties. Therefore the
Court ordered Mr. Dzivi to pay Mrs. Dzivi half the value in the sum
of $75,000.00 plus interest over an eight year period. Mr. Dzivi
claims that the values assigned by the District Court to various
items which comprise the marital estate are not supported by
credible evidence. Mr. Dzivi asserts that if the District Court
had accepted the values he placed upon the various items that the
marital estate would have a negative net worth rather than the
$149,000.00 net worth found by the Court.
The standard of review in a distribution case is that where
the District Court based its distribution of marital assets on
substantial credible evidence, it will not be overturned absent a
clear abuse of discretion. Marriage of Johns (1989), 238 Mont.
256, 258, 776 P.2d 839, 840. In valuing property, the court is not
bound by the opinion of a particular party or expert; rather, the
court remains free, in its discretion, to adopt any reasonable
valuation of property that is supported by the record. Marriage
of Luisi (1988), 232 Mont. 243, 247, 756 P.2d 456, 459. In this
case there is sufficient evidence in the record to support the
values used by the District Court. The District Court did not
abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi
the sum of $75,000.00 plus interest in lieu of a specific property
division.
I1
Did the District Court abuse its discretion when it
ordered Mr. Dzivi to pay Mrs. Dzivi $1000.00 per month for
maintenance?
Section 40-4-203, MCA, provides that the court may grant
maintenance for either spouse if that spouse lacks sufficient
property to provide for his reasonable needs and is unable to
support himself through appropriate employment. In this case the
court found that Mrs. Dzivi lacks sufficient property to provide
for her needs. The court also found that Mrs. Dzivi suffers from
rheumatoid arthritis, a degenerative disease which affects her
ability to perform physical work and which will continue to worsen.
The court determined that Mr. Dzivils health was good with the
exception of temporary despondency relative to the stress of the
divorce proceedings. The court found that Mr. Dzivi was at an age
where his law practice could be at its peak income-producing level
should he devote his time to it, and that Mr. Dzivi has shown a
remarkable ability to earn income, creatively manage assets,
accounts receivable and use tax laws to his advantage. Mr. Dzivi
has all the assets of the marriage and his ability to earn income,
while Mrs. Dzivi only has a net income of $400-425 per month. Mrs.
Dzivilshealth will create a significant disability with time, thus
reducing her income ability even further. These facts satisfy the
conditions required under 9 40-4-203, MCA. The court did not abuse
its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi $1000.00
per month in maintenance until she turns 65 or remarries.
Did the District Court abuse its discretion when it ordered
Mr. Dzivi to pay Mrs. Dzivi $5000.00 for her attorney's fees?
Section 40-4-110, MCA, provides that the court, after
considering the financial resources of both parties, may order a
party to pay a reasonable amount for costs and attorney's fees.
The District Court was well aware of the parties1 financial
situations and did not abuse its discretion in awarding Mrs. Dzivi
reasonable attorney's fees.
Affirmed .
We Concur: